scholarly journals The Existence of Decision Norms of the Constitutional Court as a Source of Legislative and Executive Laws

Lentera Hukum ◽  
2019 ◽  
Vol 6 (2) ◽  
pp. 305
Author(s):  
Adhitya Widya Kartika
Keyword(s):  
Court Decision ◽  
Legal Norm ◽  
Constitutional Court ◽  
Court Decisions ◽  
Legal Certainty ◽  
Legal Norms ◽  
Government Institutions ◽  
Legal Response ◽  
The Government ◽  
Laws And Regulations

Norms are behavioral guidelines in the Indonesian legal state. Norms continue to exist in the legislation and juridical consequences of constitutional court decisions, and in particular, that of the Constitutional Court. Legal norms have principles that are applied to a wider hierarchy of legal norms and the production of legislation. In essence, the Constitutional Court's rulings have consequences on the actions of the government and therefore the action of governance. Including decision norms in the Constitutional Court's ruling has juridical consequences for the hierarchy of regulations and state legal actions in carrying out the function of government. This article aims to find out how to apply decision norms if there an identical or related decision exists within a different judicial institution. In government institutions bound by the Constitutional Court's decisions, application of decision norms resulted in chaos for the application and enforcement of the law. The implementing agency is faced with the same legal product, namely a verdict in another judicial institution. This causes no legal certainty. Rather than a solution or outcome, implementing agencies are faced with an identical legal response yet no legal certainty. The absence of legal certainty has consequences for government institutions that are bound by the Constitutional Court's decision. By utilizing a hierarchy of legal norms, the issue of rigidity and uncertainty caused by decision norms can be resolved. Likewise, in the legislature, the Constitutional Court's decision is the source of making legal norms. As the Constitutional Court’s decision is the source of legal norm production in the legislature, espousing a hierarchy of legal norms will enable laws and regulations that are formed to reflect justice, certainty and benefit. Keywords: Court Decision, Legal Norms, Government.

scholarly journals KONSTITUSIONALITAS MATERIELE WEDERRECHTELIJK DALAM KEBIJAKAN PEMBERANTASAN TINDAK PIDANA KORUPSI

2018 ◽  
Vol 11 (2) ◽  
pp. 131
Author(s):  
Ade Adhari
Keyword(s):  
Judicial Review ◽  
Criminal Code ◽  
Court Decision ◽  
Constitutional Court ◽  
Legal Certainty ◽  
Legal Norms ◽  
The Law ◽  
Principle Of Legality ◽  
Laws And Regulations

ABSTRAKPutusan Nomor 003/PUU-IV/2006 menyatakan materiele wederrechtelijk dalam Undang-Undang Tindak Pidana Korupsi bertentangan dengan Pasal 28D ayat (1) UUD NRI 1945, dan tidak berlaku mengikat. Penelitian ini berupaya memahami apakah tepat atau tidak pertimbangan Mahkamah Konstitusi dalam putusan tersebut. Dalam menjawab permasalahan tersebut digunakan penelitian doktrinal, norma hukum serta asas yang melandasi lahirnya putusan tersebut. Berdasarkan hasil penelitian diketahui terdapat ketidaktepatan dalam pertimbangan Mahkamah Konstitusi. Mahkamah Konstitusi telah keliru dalam usahanya memvalidasi Penjelasan Pasal 2 ayat (1) Undang-Undang Tindak Pidana Korupsi dengan menguji berdasarkan asas legalitas yang terdapat dalam Pasal 1 ayat (1) KUHP. Padahal prinsipnya pengujian yang dilakukan oleh Mahkamah Konstitusi adalah menguji undang-undang terhadap UUD NRI 1945. Selain itu, Putusan Mahkamah Konstitusi berorientasi pada asas legalitas yang hanya mengutamakan rechtssicherheit dan mengesampingkan keberadaan gerechtigkeit dan zweckmässigkeit. Lebih dari itu, tidak diakuinya materiele wederrechtelijk telah meniadakan eksistensi hukum yang hidup di masyarakat sebagai sumber hukum untuk menyatakan suatu perbuatan bersifat melawan hukum. Hal ini bertentangan dengan mandat Pasal 18B ayat (2) UUD NRI 1945, dan berbagai peraturan perundang-undangan yang berlaku. Dengan demikian materiele wederrechtelijk tidak bertentangan dengan kontitusi.Kata kunci: materiele wederrechtelijk, korupsi, konstitusionalitas. ABSTRACT Constitutional Court Decision Number 003/PUUIV/2006 states unlawful criminal acts (materiele wederrechtelijk) in the Anti-Corruption Law is inconsistent with Article 28D paragraph (1) of the 1945 Constitution, and not binding. Doctrinal research, legal norms and principles underlying the birth of the court decision are used in answering whether the problem arising from the decision is justified. Based on the result of the research, there is an inaccuracy in the consideration of the Constitutional Court. The Constitutional Court has erred in its attempt to validate the Elucidation of Article 2 Paragraph (1) of Corruption Law by examining based on the legality principle contained in Article 1 paragraph (1) of the Criminal Code. Whereas in principle, what has been conducted by the Constitutional Court is a judicial review of the law against the 1945 Constitution. In addition, the Constitutional Court’s decision is oriented on the principle of legality which only prioritizes legal  certainty (Rechtssicherheit) and overrides justice (Gerechtigkeit) and utility (Zweckmässigkeit). Moreover, the unrecognized materiele wederrechtelijk has negated the existence of a living law in society as a source of law to declare unlawful acts. This is contrary to the mandate of Article 18B paragraph (2) of the 1945 Constitution and various prevailing laws and regulations. Thus, the material wederrechtelijk is not contradictory to the constitution. Keywords: materiele wederrechtelijk, corruption, constitutionality.

scholarly journals EKSEKUSI OBJEK JAMINAN FIDUSIA PASCA PUTUSAN MAHKAMAH KONSTITUSI NOMOR 18/PUU-XVII/2019

2021 ◽  
Vol 6 (2) ◽  
pp. 39
Author(s):  
Wiwin Dwi Ratna Febriyanti
Keyword(s):  
Court Decision ◽  
Executive Power ◽  
Constitutional Court ◽  
Court Decisions ◽  
Legal Certainty ◽  
Conceptual Approach ◽  
Contract Breach ◽  
Breach Of Contract ◽  
Colonial Era ◽  
Legal Consequence

Fiduciary guarantees have existed in society since the Dutch colonial era because the fl exibility of objects that can be imposed by fi duciary increases the need for legal certainty for the guarantee of this model. UUJF requires the registration of fi duciary security to be imposed. Registration is carried out at the Ministry of Law and Human Rights to obtain a fi duciary certifi cate. The fi duciary certifi cate contains irah-irah which the power of execution so that the execution can be carried out immediately without going through a court and is final as explained in article 15 paragraph (2). In practice, this article often becomes a polemic in the community, causing actions against the law and even criminal acts when the fi duciary recipient wants to execute fi duciary collateral. After the decision of the Constitutional Court Number 18/PUU-XVII/2019, in its decision to redefi ne article 15 paragraph (2) and paragraph (3) UUJF, Based on this, this research discusses the executive power of the fi duciary security certifi cate after The Constitutional Court decision Number 18/PUU-XVII/2019. With statutory approach, and a conceptual approach, the conclusion is that the power of execution title in the fi duciary guarantee certifi cate is not changed, it’s just a legal consequence arising from the Constitutional Court decision number 18/PUU-XVII/2019, namely the implementation mechanism for the execution of the fi duciary guarantee certifi cate is carried out the same as the execution of court decisions that have permanent legal force (inkrah), when the grantor of fi duciary does not voluntarily surrender the object of fi duciary security under his control. Apart from that, it must be agreed by the parties regarding breach of contract. breach of contract should be detailed in the main agreement and the imposition of fi duciary security.

scholarly journals Implementation of the Constitutional Court Decision Regarding the Execution of Fiduciary Guarantees and Inclusion of Default Clauses in Indonesia

2020 ◽  
Vol 10 ◽  
pp. 33-38
Author(s):  
Siti Malikhatun Badriyah ◽  
◽  
R. Suharto ◽  
Marjo Marjo ◽  
Retno Saraswati ◽  
...  
Keyword(s):  
Research Method ◽  
Civil Law ◽  
Legal Protection ◽  
Court Decision ◽  
Constitutional Court ◽  
Legal Regulations ◽  
Legal Certainty ◽  
Legal Norms ◽  
Legal Principles

The existence of the Constitutional Court Decision Number 18/PUU-XVII/2019, made problems in society related to the implementation of the fiduciary guarantee execution. This study aims to determine and analyze the implementation of the Constitutional Court Decision Number 18/PUU-XVII/2019. The research method used is normative juridical by conducting document studies of legal principles, legal regulations and legal norms in Indonesia and interviews with civil law experts. The results showed that the decision of the Constitutional Court Number 18/PUU-XVII/2019, caused disagreements in its implementation. Prior to the Constitutional Court Decision, the execution of the Fiduciary Guarantee was based on the Fiduciary Guarantee Law, if the debtor in default, the Fiduciary Recipient can execute on the basis of the fiduciary recipient's own power to sell the object of fiduciary security, but with a Constitutional Court Decision it must go through a court. This creates confusion for creditors and is against the principle of material security. This is detrimental to creditors, because creditors cannot immediately sell their own fiduciary collateral objects if the debtor defaults. This phenomenon can lead to a lack of legal certainty and legal protection for fiduciary recipients and contradicts the nature of fiduciary guarantees which should have strong guarantee rights and are easy to implement.

scholarly journals Anak Luar Nikah Pasca Putusan Mahkamah Konstitusi Nomor: 46/PUU-VIII/2010 Berkaitan Dengan Perlindungan Hukum Terhadap Hak-Hak Keperdataan Anak Di Luar Perkawinan

2016 ◽  
Vol 1 (1) ◽  
Author(s):  
Farhan Asyhadi
Keyword(s):  
Civil Rights ◽  
Court Decision ◽  
Legal Norm ◽  
Constitutional Court ◽  
Biological Father

Putusan Mahkamah Konstitusi Nomor 46/PUU-VIII/2010, yang merubah/menambah norma hukum Pasal 43 Ayat (1) Undang-Undang Nomor 1 Tahun 1974 tentang Perkawinan adalah salah satu bukti nyata akan peran lembaga Pengadilan dalam memikirkan nasib dan masa depan anak yang lahir diluar perkawinan itu terhadap laki-laki sebagai ayah biologisnya, maka dengan norma hukum baru itu, Hakim-hakim pengadilan Agama sesuai dengan kewenangannya diharapkan mampu menjabarkan hak-hak keperdataan anak luar nikah dalam putusan-putusannya, agar kedepan hak-hak keperdataan anak seperti itu terhadap laki-laki sebagai ayah biologisnya terjamin sehingga dapat menjalani kehidupannya dengan wajar sebagaimana mestinya tanpa diskriminasi. Kata Kunci: Mahkamah Konstitusi, Perkawinan Children Married Outside After The Decision Of The Constitutional Court Number: 46 / PUU-VIII / 2010 Relating To Protection Against Civil Rights Child Outside Of Marriage Constitutional Court Decision No. 46 / PUU-VIII / 2010, which modified / legal norm of Article 43 Paragraph (1) of Law No. 1 of 1974 on Marriage is one of the first concrete evidence of the role of the Court in thinking about the fate and future of children born outside the marriage of a man as the biological father, then the norms of the new law, judges court religion in accordance with the authority is expected to describe the civil rights of children out of wedlock in its decisions, that future civil rights to children as against men as the biological father assured so as to live it to the fair as it should without discrimination. Keywords: The Constitutional Court, Marriage

scholarly journals PELAKSANAAN UNDANG-UNDANG NOMOR 33 TAHUN 2014 TENTANG JAMINAN PRODUK HALAL TERHADAP PENDAFTARAN SERTIFIKAT HALAL PADA PRODUK MAKANAN

2018 ◽  
Vol 1 (1) ◽  
pp. 511
Author(s):  
Melissa Aulia Hosanna ◽  
Susanti Adi Nugroho
Keyword(s):  
Consumer Protection ◽  
Food Products ◽  
Legal Certainty ◽  
Muslim Population ◽  
Halal Food ◽  
The Government ◽  
Laws And Regulations

Food is one of the most necessary needs of humans to survive so that everyone is expected to pay more attention to the food products that will be consumed.Indonesia is a country with a predominantly Muslim population. In the teachings of Islam there are orders to consume halal food and prohibition to consume illegitimate food. Halal product is a product that qualifies halal according to Islamic syariat from its substance, its process and its storage and presentation. This study aims to determine the implementation of law number 33 of 2014 on the guarantee of halal products on the registration of halal certificates on food products and what are the constraints faced in registering halal certificates.The guarantee of consumer protection against the circulation of halal labeled food products is already guaranteed according to the prevailing laws and regulations and the products labeled official halal have provided legal certainty to the halal nature of the product itself which can be seen from the authority given by the government to MUI and BPJPH.

Casting Off Egyptian Ḥanafism: Sharīʿa, Divorce, and Legal Reform in 20th-Century Egypt

2020 ◽  
pp. 1-35
Author(s):  
Samy Ayoub
Keyword(s):  
Ottoman Empire ◽  
20Th Century ◽  
Legal Reform ◽  
Court Decision ◽  
Early 20Th Century ◽  
Close Reading ◽  
Divorce Law ◽  
Legal Norms ◽  
Judicial Reasoning ◽  
The Government

AbstractThis article explores an important debate on divorce law in early 20th-century Egypt between the sharīʿa judge Aḥmad Muḥammad Shākir (d. 1958) and the adjunct to the last Shaykh al-Islām of the Ottoman Empire, Muḥammad Zāhid al-Kawtharī (d. 1952). The debate is centred on Shākir’s argument that triple divorce (three pronouncements of the divorce oath in one utterance, deemed irrevocable according to the Ḥanafī school) should be treated as a single revocable divorce, a position that the Ḥanafī school rejects. The Egyptian divorce law was changed on 10 March 1929 to embrace the revised position, supported by the government, that a triple divorce counts as a single divorce, thereby making it revocable. Shākir argued that the official adherence of the sharīʿa courts to the preponderant opinions (al-rājiḥ) of the Ḥanafī school was one of the key obstacles to meaningful legal reform in this case. Despite his declared following of the Ḥanafī school, Shākir dismissed Ḥanafī legal norms and authorities, and advocated an urgent break with the control of the Ḥanafī legal school on the process of judicial reasoning in the Egyptian sharīʿa courts. To further demonstrate this dynamic, I take up a close reading of a court decision on whether custody payments (ujrat al-ḥaḍāna) include housing support (sakan), or if the latter is a separate calculated expense. Shākir not only ruled in opposition to the Ḥanafī preponderant position but also rejected the late Ḥanafī authority Muḥammad Amīn ʿĀbidīn’s (Ibn ʿĀbidīn, d. 1836) effort to harmonize the school’s position on this matter. I propose that Shākir was an iconoclastic Ḥanafī.

scholarly journals KEKUATAN HUKUM SURAT KETERANGAN AHLI WARIS BAGI ANAK LUAR KAWIN DARI PERNIKAHAN TIDAK TERCATAT

2018 ◽  
Author(s):  
Tengku Erwinsyahbana ◽  
Harmita
Keyword(s):  
Qualitative Method ◽  
Constitutional Court ◽  
Legal Certainty ◽  
Biological Father ◽  
Legal Power ◽  
Born Child ◽  
The Government ◽  
Research Type ◽  
Descriptive Qualitative

Based on the Decision of the Constitutional Court Number 46/PUU-VIII/ 2010, a child born from an unregistered marriage may have a civil relationship with his biological father, so as to remain inherited, and to obtain legal certainty as an heir the name of the uregistered marrieage born child should mentioned as the heir. This fact is interesting to be examined and it aims to obtain answers of the legal strength of the heirs’ certificate of unrecorded marriage. This research type is juridical normative with legislation approach through the descriptive-qualitative method. The results of the study indicate that in order to obtain legal certainty, it is supposedly that the certificate of inheritance contains the name of the unrecorded marriage born child. But, this is can’t be done, because there is no legislation determines that the child’s name from unregistered marriage could be contained in the letter. So, with no legislation, the certificate of inheritance containing the name of the unregistered marriage child has no legal power, and therefore it is recommended that the government immediately make a regulation concerning the inheritance certificate for the child from unregistered marriage, so it could be clear and fixed.

scholarly journals Efektivitas Kekuatan Eksekutorial Pada Sertifikat Jaminan Fidusia Pasca Putusan Mahkamah Konstitusi Nomor 18/PUU-XVII/2019

2021 ◽  
Vol 3 (1) ◽  
Author(s):  
Dinda Laras Ayu Pratiwi ◽  
Andi Salman Maggalatung ◽  
Nurhasanah Nurhasanah
Keyword(s):  
Court Decision ◽  
Constitutional Court ◽  
Legal Certainty ◽  
Principle Of Justice

This research contains an analysis of the considerations of the Constitutional Court in deciding the Constitutional Court Decision Number 18/PUU-XVII/2019 and the effectiveness of its implementation. This research uses the juridical-normative method and the legal material comes from the Constitutional Court Decision Number 18/PUU-XVII/ 2019 and other decisions. The results of this research revealed that the decision was based on the principle of justice and legal certainty. The implementation itself has not been going well because there are still several unfulfilled factors.

scholarly journals WANPRESTASI TERHADAP AKTA PENGAKUAN UTANG DIBAWAH TANGAN DENGAN JAMINAN SERTIFIKAT HAK MILIK ATAS TANAH DITINJAU DARI PASAL 12 UNDANG-UNDANG NOMOR 4 TAHUN 1996 TENTANG HAK TANGGUNGAN ( Analisis Putusan Kasasi Nomor 837 K/Pdt/2019 )

2020 ◽  
Vol 3 (1) ◽  
pp. 105
Author(s):  
Aria Dimas Harapan ◽  
Andi Safira Yan Istiany
Keyword(s):  
Research Method ◽  
Court Decisions ◽  
Legal Certainty ◽  
Legal Norms ◽  
Civil Case ◽  
Sense Of Security ◽  
Ratio Decidendi ◽  
Credit Agreement ◽  
Case Number ◽  
Legal Consequences

Starting from the need for capital, in practice some people are reluctant to make credit with banks, because the process is considered difficult, and too convoluted. Therefore, some people prefer to borrow a certain amount of money from individuals or what is better known as debt or credit. Talking about the debt and credit agreement, it will be closely related to collateral because every creditor needs a sense of security for the funds he lends. The author's research is made to examine and find out what efforts can be made if there is default in an underhand debt acknowledgment that guarantees the title of title to land without being preceded by a principal agreement, as well as the judge's consideration (Ratio Decidendi) in the Cassation Decision Number 837K / Pdt / 2019 concerning default in the debt acknowledgment. The research method used in this study is a descriptive normative juridical approach, namely research that refers to the legal norms contained in statutory regulations and court decisions. The results of the research obtained by the author in this study are the first consideration of the judge in deciding Case Number 837 / K / Pdt / 2019 is not quite right because in theory the judge's decision overrides legal certainty for a civil case by deciding in default of a debt acknowledgment, which then the judge also also declared null and void the debt acknowledgment. Where based on the provisions of Article 12 of Law Number 4 of 1996 concerning Mortgage Rights, the guarantee which is the object of the author's research, is a forbidden cause that is contrary to the validity of an agreement, so that the legal consequences are null and void from the start without having to obey prior default in the debt recognition deed. So that the author's suggestion is necessary for parties who want to carry out lending and borrowing activities, especially in terms of debt and credit, first understand any rules and legal norms that apply to their actions, so that they will not cause losses among the parties who bind themselves in the future.

scholarly journals Tafsir Wewenang Seponering Jaksa Agung Pasca Putusan Mahkamah Konstitusi Nomor 29/PUU-XIV/2016

2021 ◽  
Vol 4 (2) ◽  
Author(s):  
Ilham Dwi Rafiqi
Keyword(s):  
Public Interest ◽  
Attorney General ◽  
State Power ◽  
Constitutional Court ◽  
Court Decisions ◽  
Legal Certainty ◽  
The Public ◽  
Legal Implications ◽  
The Republic ◽  
Definition Of

The affirmation of the attorney general's authority in the Elucidation of Article 35 letter C of the Indonesian Prosecutor's Law after the decision of the Constitutional Court Number 29/PUU-XIV/2016 still leaves problems and has the potential to cause new legal problems. This research will look at and analyze how the authority of the Attorney General after the decision is as well as how the concept of an ideal arrangement that ensures legal certainty. This research uses normative juridical research with a statutory approach and case studies which in this case are court decisions. The results showed that after Constitutional Court decision, there was a change in the meaning of the Elucidation of Article 35 letter c of the Republic of Indonesia Prosecutor's Law. Based on the results of these interpretations and decisions, the legal implications that followed were related to the conditions for setting aside cases in the public interest, namely in setting aside cases in the public interest, the Attorney General was required to 'require' first to pay attention to suggestions and opinions from state power agencies that have relationship with the problem. The concept of an ideal arrangement that can guarantee legal certainty as an indicator to measure and assess the implementation of the Attorney General's obligations can be done by clarifying the definition of "state power agencies" for which advice and opinions are requested and making criteria for the term "public interest".

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